The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter -- the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices' claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis.

This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of "constitutional first impression" -- those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span the Court’s nearly 220-year history from 1789-2005.

Our results showed that the historical Court did lay claim to relying on the intention of the Framers in their interpretation of the Constitution, placing them today in what would be the Intentionalist camp. Yet our qualitative and quantitative data undermines the Court's claimed intentionalism, albiet for different reasons at different times. In the first century, the Court claimed to -- but did not actually -- rely upon Framing Intent as it is currently understood. Perhaps this was because the Court was using a common law method of interpretation, or because it had adopted a "Whiggish" view of the Constitution's history.

In the second century, on the other hand, the Court did rely more upon specific primary Framing-era sources to support its supposed Intentionalism. Yet the Court also relied more upon secondary sources that complicate the picture, including many that demonstrate a trend towards Living Constitutionalism.

We therefore believe the conclusion that the Court adopted any form of Originalism before the modern advent of the term, to be wrong. It is not possible to say the Court actually engaged in Originalism until the Warren and Burger Courts. This is ironic, given that it was the Warren and Burger Courts that were most often accused of avoiding Originalist interpretation. But this was the era in which the Court finally started to make good on its commitment to relying on the intent of the Framers by citing to them and their documents with consistency and proportional frequency.

Although our study has focused only on cases of constitutional first impression, because it constituted a randomized, inclusive, and representative sample of the Court's constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized.

09/29/2012

Congressional Republicans have joined in a lawsuit challenging President Barack Obama's recess appointments to the National Labor Relations Board in January, a legal fight focused on the constitutional limits of presidential appointment power.

The report notes that the Senate Republicans are represented by Miguel Estrada and the House Republicans are represented by Jay Sekulow, two very big names in constitutional litigation.

On January 31, 1865, the United States House of Representatives voted to approve the Thirteenth Amendment. Chairing the final debate over the Amendment was Representative James Ashley, a lifelong opponent of slavery from Northwest Ohio who led the fight for the Amendment’s approval in the House. Ashley and his antislavery colleagues believed that the Thirteenth Amendment not only ended slavery, but also established fundamental human rights for freed slaves and other people in the United States. This Essay describes Ashley’s theory of the Thirteenth Amendment, a theory that addressed the intersectionality of racial and class-based oppression. Ashley viewed slavery as an institution that relied on both racial and class subordination. Remedying the harms of slavery would require the restoration of a wide range of fundamental human rights that had been violated by that institution, to remedy both the class and race-based subordination that had made slavery possible and improve the status of all workers. As scholars engage in that dialogue over the meaning of rights in the twenty-first century, the Thirteenth Amendment will play an important role. James Ashley’s vision of the Thirteenth Amendment is helpful not only for understanding its history, but also because it resonates in the twenty-first century and provides a useful model for rethinking equality rights.

09/28/2012

In this post, I continue my earlier discussion of the Origination Clause through a review of Jack Balkin’s views.

Jack Balkin analyzes the Origination Clause issue in accord with his general approach to constitutional interpretation. Jack writes:

My reading of the history is that today's practice of using shell bills is not consistent with the original expected application of the Origination Clause. The House was quite jealous of its prerogatives for many years. Nevertheless, shell bills are consistent with the words of the Constitution: "the Senate may propose or concur with Amendments [to "Bills for raising Revenue"] as on other Bills." Shell bills are Senate amendments to House revenue measures, and in other bills the Senate may strike as much of a bill as it wants to when it amends it.

So the question is whether twentieth century practice-- and judicial precedents--have altered the best construction of the text so that it differs from the original expected application. If so, it would not be the first time this has happened.

I am not certain how to interpet Jack’s claim. Based on what he says in the post and on his general interpretive approach, I interpret him to claim that the original public meaning of the Origination Clause is actually quite minimal. The early broad interpretation involved a “construction” of the Clause and the later narrow interpretation was a different construction. Both constructions are constitutional because the minimal original meaning does not conflict with either. (If I have misunderstood his position, I welcome correction.)

I am skeptical of this analysis. I see little reason to believe that the original meaning of the Origination Clause is so minimal. Rather, the basic assumption should be the Clause had a single and determinate meaning when it was enacted. The inquiry for the originalist is to determine what that meaning was by consulting the original materials. In this case, the key question appears to be what counts as an amendment and whether a complete replacement is an amendment.

At the beginning of my career as a law professor, I did quite a bit of research on the history of constitutional provisions that restricted upper houses from introducing money measures. There were significant controversies involving the matter in England, in the colonies, in the independent states, and at the Philadelphia Convention. The Philadelphia Convention eventually reached a compromise or middle position. It incorporated a provision that required revenue bills to originate in the House, but it allowed the Senate to amend such revenue bills.

But this history does answer the basic question of what constitutes an amendment. Based on current (and perhaps historical) usage, my sense is that an amendment could mean a change in an initial version of a bill that modifies the bill, but does not completely replace it. But a problem with the definition is that it leaves open how much of the original bill must be retained. Would a single small provision be adequate? If not, how much? This line drawing problem make it less likely that this is the meaning employed by the Framers.

One problem I find in analyzing this issue is that I am not even sure I understand the second portion of the Clause, which provides that “the Senate may propose or concur with amendments as on other Bills.” What does “may propose or concur with amendments” mean? I will turn to this question in my next post.

A further thought on my part: a number of commentators have been talking up the significance of Bond v. United States, a case on federalism and the treaty power now pending for certiorari at the Supreme Court. Briefly, the claim in Bond is that the federal government has overstepped its enumerated powers by charging a federal crime in a case where a woman attempted to poison her rival in a love triangle. Though that's not the sort of crime that appears to have national implications, the federal government claims Congress has power over local misuse of chemicals through its power to implement a treaty, the Chemical Weapons Convention. Thus (it is said) the case raises the question whether the treatymaking power can expand Congress' enumerated powers.

But on the theory of the beard-cutting case, who needs the Chemical Weapons Convention? One of the prosecutor's core claims in the beard-cutting case is that the instruments used to cut the beards at some prior point traveled in interstate commerce, and that's enough to invoke the federal interstate commerce power. If that's so, then surely Bond is an easy case: presumably the chemicals involved there also at some point traveled in interstate commerce.

That shows, I think , that the beard-cutting case must be wrong. People think Bond is a hard case because the prosecutors need to rely on the treaty power. If they don't, everyone is thinking about Bond in the wrong way. More likely, though, the assumptions in Bond are right -- it can't be enough to invoke the interstate commerce power to show that some item used in a non-commercial activity at one point long before moved in interstate commerce. If the touchstone of federalism is a limiting principle for national power (as was said many times in the health care litigation) then a closer connection to interstate commerce must be required. Otherwise, everything truly is national (and commercial).

Our fate hangs on the Fed; and yet, it is an independent institution, immunized from direct political pressures. In a democracy, operating under a Constitution that makes no explicit provision for a central bank and in many ways resists the creation of fourth or fifth branches of government, an independent Fed is an oddity. For what it’s worth, the Fed’s founders acknowledged the point: initially, the Secretary of the Treasury served as the institution’s ex officio chairman. That arrangement was changed in the 1930s, after the Supreme Court had cleared the way for "independent" agencies.

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed "passed" only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge to the Senate cloture rule is doomed from the start if that body may self-impose supermajority voting thresholds even for the actual enactment of laws. Existing scholarly work in this area, however, is incomplete. The most elaborate treatments invoke originalist principles to claim that the chambers of Congress may freely adopt supermajority (as well as submajority) bill voting requirements. These treatments have spawned critical responses, but none of them focuses in full-blown fashion on the words and deeds of the Framers themselves. This Article fills the resulting gap by offering a wideranging argument against supermajority voting rules based on constitutional text, constitutional structure, and background understandings that pervaded the framing period. Taken as a whole, these controlling indicators of original meaning establish that a bill is passed if and only if it receives a majority vote.

09/25/2012

Over at the New York Review of Books, Justice Stevens writes an interesting review of Sandy Levinson's new book Framed. Stevens writes a balanced review, but he disagrees with Sandy's recommendation in favor of a constitutional convention.

Interestingly, Stevens also disagrees with Sandy's attack on the compromises that produced the Constitution -- compromises that allowed slavery to continue and permitted an equality of state power in the Senate. Stevens writes:

But Levinson’s evaluation of the great compromises essentially ignores
the fact that the failure to reach an agreement would have preserved the
Articles of Confederation, which required unanimous agreement to
implement any change that might impair the sovereignty of any state. . .

Although Levinson’s book contains a lucid and accurate description of
the costs incurred by the Framers’ “great compromises,” his discussion
omits an adequate consideration of the nature of the quid pro
quo—specifically, of what benefits were obtained in return. Those
benefits included the development of a flourishing national market where
free competition replaced multiple restraints of trade in thirteen
balkanized local markets. The contrast between the Framers’ prompt
creation of a flourishing common market and the years that went by
before such a market arrived in Europe should not be ignored.Nor
should we ignore the importance of the replacement of each state’s
absolute veto over certain federal actions with a bicameral legislature
that has the power to take action in the national interest, if
majorities in both houses agree.

I have made similar arguments myself about the compromise that led to the Constitution.

... Samuel Mullet Sr., the leader of an Amish sect in Ohio, and 15 of his followers were convicted of federal crimes in connection with a series of bizarre beard- and hair-cutting attacks on other Amish with whom Mullet was feuding. Why was this a federal case? Because Steven M. Dettelbach, the U.S. attorney for the Northern District of Ohio, argued that Mullet picked his victims "because of" their "actual or perceived religion." Specifically, Mullet had said the attacks (which he denied ordering) were punishment for failing to respect his authority as a bishop, including his excommunication orders against those he deemed insufficiently pious. Federal prosecutors said that religious motivation made the attacks hate crimes.

But what is the Article I, Section 8 enumerated power that allows the national government to regulate what appears to be a local offense? The commerce clause, of course. From Sullum’s account:

The government also had to cite an "interstate nexus" to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The "Wahl battery-operated hair clippers" used in the assaults "were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware." The defendants also used "a pair of 8'' horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale." They took pictures of their victims with "a Fuji disposable camera from Walmart" that "travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina." They used "an instrumentality of interstate commerce" (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.

This result seems hard to square with any plausible theory of shared national/local powers, and in particular with the original meaning of the commerce clause. And it seems inconsistent with the U.S. Supreme Court’s decision in United States v. Morrison, which held a portion of the federal Violence against Women Act unconstitutional on the ground that the Act regulated non-economic activity (assault) lacking a substantial relationship with interstate commerce. (Morrison addressed a civil remedy rather than a criminal prosecution, but it’s hard to see how that matters). The short of it is that if the national government can regulate any activity that involves items that at one distant point moved in interstate commerce, then it can regulate effectively everything.

Two caveats. (1) It’s possible, in my view, that under some circumstances the national government might reach activity of this sort under Section 5 of the Fourteenth Amendment (which gives Congress power to enforce the prior sections of the Amendment, including the equal protection clause). If a state is not enforcing its assault laws (or other laws) against a particular group out of prejudice, I would think Section 5 might allow the national government to intervene to assure that equal protection is given to that group, including by providing a federal remedy. But here, as far as I know there’s no argument that Ohio couldn’t or wouldn’t prosecute the assault. (2) Whatever one thinks of the 1960s civil rights cases like Katzenbach v. McClung, they are entirely different from the Amish case and have their own limiting principle. In McClung (the “Ollie’s Barbecue” case), the Court upheld a federal prohibition on private race discrimination by a restaurant (Ollie’s) that had minimal interstate business. It’s true that one of the arguments made in support of the decision was that Ollie’s Barbecue purchased food in interstate commerce. But (a) the Court’s better argument was that private race discrimination impeded interstate travel, and anyway (b) Ollie’s, unlike the Amish defendants, was engaged in commercial activity. The Morrison Court emphasized the latter difference in distinguishing McClung and Morrison, and that distinction seems also appropriate in the Amish case. This would be a different case if the defendant's actions had economic motivations, but as far as I know they didn't.

I don’t know if procedurally the issue is viable on appeal, but it is cases like this that the Supreme Court should look for, if it is serious about reviving a meaningful limit on the national government’s regulatory power. It’s hard to imagine that many people care whether beard-cutting is a state or federal crime, so there’s a principle to be reinforced at relatively low cost (unlike in NFIB v. Sebelius, where a meaningful upholding of the principle would have come at great political cost to the Court).

Notably, I suspect that cases like this are farily common (that is, cases of federal criminalization of local offenses; beard-cutting, we may assume, is rare). A while back I asked which (if any) fields were one that modern national legislation routinely and obviously exceeded the original limits. This sort of law seems like a good candidate, and thus a good target for those interested in at least a modest step toward revival of the original design.

And as a further aside, a number of nationalist-oriented academic commentators have developed theories of national/state power that purport to leave room for some exclusive state power while permitting major federal programs such as the health care law upheld in NFIB v. Sebelius. For example, Neil Siegel and Robert Cooter have argued that national regulation is appropriate as to activities that pose collective action problems having substantial spill-over effects across states (like, they say, the health care law), but not otherwise. As Professor Siegel insists, "[c]ollective action federalism is a theory of limits on federal power, not just a theory of licenses to legislate." But I tend to be a little skeptical when such assurances are made in the abstract. If these theories are to be taken seriously, they need to actually favor state power in some specific non-hypothetical cases – such as, perhaps, this one. What say you, Professor Siegel?